The Ontario Court of Appeal released a decision today upholding the acquittal of a London high school teacher charged with the criminal offence of voyeurism.
The decision, R. v. Jarvis, was a Crown appeal from the decision at the Superior Court of Justice in London, Ontario. Ryan Jarvis was charged with voyeurism for surreptitiously recording nearly 30 female students and staff on a hidden pen-camera. The charge was laid because the video focussed at times heavily on the subjects’ breast areas and the Crown alleged the videos were made “for a sexual purpose”.
The trial judge found that the “sexual purpose”, an essential element of the offence in this case could not be proven beyond a reasonable doubt. The Ontario Court of Appeal disagreed, ruling that, in essence the trial judge erred in law, failing to cite any evidence that supported any reasonable inference other than a sexual purpose.
However, the Court of Appeal acquitted Mr. Jarvis on another basis. The appeal court accepted the cross-appeal argument of the defence that the students and staff did not have the requisite “expectation of privacy” at the time of the secret recordings.
The trial judge originally ruled that the expectation of privacy did exist, but conflated two different elements of the offence in his reasoning. Essentially, the trial judge found that there was a reasonable expectation not to be surreptitiously recorded. Which may be true, and certainly fits with our notion of what is appropriate and – as in this case – inappropriate behaviour for a high school teacher. However, this is not the test for voyeurism.
Amongst others, there are two separate conditions that must exist for the offence to be made out: the surreptitious nature of the observation/recording, and the reasonable expectation of privacy. The first condition ensures that when persons are being recorded and know it, can see it, can object, can consent or not consent, that this is not considered criminal voyeurism. The second condition that is important to note here – the expectation of privacy – ensures that the crime is only made out when the accused is viewing or recording something to which he or she is not granted normal access. As the court states, the law includes both viewing and recording as illegal in certain circumstances. But it is wrong in law to think the distinction between viewing and recording can be used to find that a place that is public is then private “for the purpose of recording”.
To illustrate: imagine Mr. Jarvis did not record, but simply looked – inappropriately – at the breasts of a female co-worker or student. While in no way acceptable behaviour, no judge would determine this to be voyeurism. If we break down that instinct and give a legal explanation to it, we see that it relates to the “expectation of privacy”. To surreptitiously observe another person while they are changing clothes in a dressing room is voyeurism because they do not expect you to be able to see them there in that state. Even if the person does not expose themselves in the process of changing, it is voyeurism if the viewing is “for a sexual purpose”. To look upon somebody’s body in the hallway or classroom (or the mall, or on a bus, for that matter), even if for a sexual purpose, is not illegal even if it is inappropriate. According to the Court of Appeal, the fact that the observations of these people in the normal course of their days, in public places were also recorded does not affect the fact that they were out and about in places where they did not expect the privacy of “not being seen”.
It is important to note, as the court does, that transferring or posting any such video online is a separate offence in and of itself. In this case, however, there was no evidence that Mr. Jarvis did so.
“Expectation of privacy” means different things in different contexts, even within criminal law. But as the court ruled here, in the context of the offence of voyeurism, the law is concerned with the sort of privacy in which persons expect not only not to be recorded, but, essentially, not to be seen by persons such as the accused.
This decision will undoubtedly prove controversial. In dissent, Justice Huscroft writes:
 The majority’s approach to interpreting s. 162(1) focuses on the term “privacy” and one meaning of the term set out in the Oxford English Dictionary. This definition leads the majority to tie the protection of privacy to the location in which a privacy claim is asserted, as well as the ability to exclude others from that location. The difficulty with this approach is apparent from the examples the majority gives: a home, an office, and a washroom, all places “where a person feels confident that they are not being observed.” These examples are both under- and overinclusive when considered in terms of the choice Parliament has made – the good that s. 162(1) is intended to protect.
 They are underinclusive because it is possible to conceive of claims to privacy that are entitled to protection – at least to some extent – in a variety of public places. For example, a woman breastfeeding an infant at a shopping mall or a workplace may have an attenuated expectation of privacy. She cannot expect not to be viewed while in a public place. But it does not follow that she has no reasonable expectation of privacy whatsoever. Privacy expectations need not be understood in an all-or-nothing fashion. In my view, there is a reasonable expectation that she will not be visually recorded surreptitiously for a sexual purpose. She has a reasonable expectation of privacy at least to this extent.
The dissent of Huscroft J.A., will offer considerable momentum and weight to a Crown appeal to the Supreme Court of Canada. While an appeal is not yet announced at the time of this post, it is very likely to happen in our view. We suspect this is not the last word on this issue.